The Legal Hot Zone — The Hidden Role of Publishers in Academic and Scientific Legal Disputes

A post I’ve found to be timeless is Joe Esposito’s “Governance and the Not-for-Profit Publisher.” It’s so evergreen that it’s been republished as a “Stick to Your Ribs” twice since it’s initial publication in 2011. It contains many truisms about scholarly publishing and its relationship to academia, including this classic passage:

. . . publishing is one of those fields where everyone is an expert. There are other fields like this as well — politics, certainly: everyone thinks he or she could do a better job than the bozos in office; or the management of a sports team, a task that may very well be as complex as working in some academic disciplines. But publishing is different in that a professor of cognitive science would most likely stop short if asked to manage the New York Yankees, but as for publishing — well, what’s so hard about that?

Part of the reason these roles aren’t touted much is because they often go unseen. Authors see peer-review and publication, and mistakenly think that’s all publishers do. That’s a classic “availability error,” the same as thinking that what happens on the field is all there is to winning the game, much less fielding a team.

Many of the things publishers do require a great deal of discretion to be done well — they are, by definition, done without the expectation that trumpets will sound and parades will be convened. Fundamentally, publishers try to serve readers and authors simultaneously, while working to keep the bureaucracy and infrastructure of scholarly publishing overall running well.

Besides, nobody wants to hear about how hard their publishers work. We’re supposed to be a dignified group, a reward to work with, and a happy phase of an academic’s experience.

One of the more time-consuming roles requiring the most discretion is that of legal go-between, legal advocate, or legal prosecutor. (This is #54 on the list of 73 things publishers do.) There is a lot of legal work that goes beyond the legal elements — copyright, licensing — which authors generally see.

In my experience, most publishers of cutting-edge content have one or more significant legal imbroglios going on at any particular time.

These legal disputes often come out of the clear blue sky. Something used in the field is recalled. There is a complaint about ethics violations. Someone alleges author misconduct. An internal matter at an academic center spins out of control and demands attention from the publisher. An investigation at another publication begins to cast a shadow across related publications. A paper is translated into another language with unapproved changes that alter the conclusions to suit local market needs. Someone’s signature was forged. Someone is mad at someone else and hoping to use the publisher as a cudgel.

Whatever the source or scope of the legal problem, the destination is typically the same — the top. The top executives find themselves deeply involved, the top editor is usually drawn in to some extent, and the organization’s top legal advisers are contacted.

If you’re working in an office dealing with situations like this, you see the signs — more doors are closed, more side conversations occur sotto voce, and more bags appear under the eyes of a few top people.

These legal machinations can be exhausting, but they are inevitable. It’s part of the cost of doing business, and part of the scholarly publishing life.

Discretion is key throughout, which is why this aspect of publishing isn’t much discussed and why no specifics will be shared here. The best outcome is for the allegations to be dealt with quickly and fairly, with as little collateral damage as possible — not a lot of downtime for key people, not a lot of expense, and not a lot of awareness of what transpired outside of those immediately involved. This is often for the sake of authors and academics as much as anything else. Sometimes it’s hard to know if allegations are themselves an attempt at slander. Because of the complex politics of academia and publication, investigations often consist of long walks on eggshells as you try to find the path leading to the truth and/or resolution.

Dealing with these disputes — some of which are false alarms — requires time and treasure, and also requires the publisher to have the financial and existential independence to adjudicate these disputes with impunity. That is, without the independent ability to follow blame where it leads, including the funds and expertise to put it all together, this important function would be severely hindered.

This is another reason why the “how” of funding is so important. If authors are funding your operation, do you pursue these cases with as much independence? Or has the dependence on author fees fundamentally altered the situation? Because legal problems are usually dealt with outside the public view, it’s impossible to know what is pursued and what is buried.

In some cases, legal disputes gain or demand public awareness. A paper is tagged with an “Expression of Concern” or retracted. Court proceedings are started, and the press catches wind. In some of the more spectacular situations, cases can last for months and stamp out headlines regularly. Even in these instances, the publisher’s role is often muted or absent, as the plaintiffs and defendants represent constituencies at either end of the publisher’s centripetal influence.

We are not all publishers, and the amount of infrastructure and expertise required often surprises non-publishers who seek to become publishers. A publisher does not wield any certain technology or manage any particular kind of system — rather, a publisher takes risks on the behalf of authors and readers, in hopes that the risk pays off. This is true whether the publisher is Facebook, WordPress, Elsevier, PLOS, an ambitious library, or one of the hundreds of societies and universities with publishing programs. Good publishers insure themselves against many of the risks of publishing by purchasing policies in case of outright disasters, but the manageable (but often expensive and time-consuming) risk each paper or author holds cannot be neutralized, even by peer review, strong editors, and solid publishing practices. Legal matters arise, and must be dealt with — with discretion, with skill, and with a defensible independence that only well-funded and non-compromised publishers can bring to bear.

Now, about those off-season acquisitions by the Yankees . . .

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About Kent Anderson

I am the Publisher at AAAS/Science. Previously, I have worked as CEO/Publisher of the STRIATUS/JBJS, Inc., a publishing executive at the New England Journal of Medicine, and Director of Medical Journals at the American Academy of Pediatrics. Opinions on social media or blogs are my own.

Discussion

2 thoughts on “The Legal Hot Zone — The Hidden Role of Publishers in Academic and Scientific Legal Disputes”

I would venture to guess that libel arises as an issue much more frequently in humanities and social science publishing than it does in STEM publishing, so there are probably some differences among sectors of publishing with respect to the salience of different legal issues.

The mission of the Society for Scholarly Publishing (SSP) is "[t]o advance scholarly publishing and communication, and the professional development of its members through education, collaboration, and networking." SSP established The Scholarly Kitchen blog in February 2008 to keep SSP members and interested parties aware of new developments in publishing.
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The Scholarly Kitchen is a moderated and independent blog. Opinions on The Scholarly Kitchen are those of the authors. They are not necessarily those held by the Society for Scholarly Publishing nor by their respective employers.